This was an action by scire facias by appellants, to assign additional breaches on the official bond of M. C.McLain, master in chancery, judgment having been recovered on the bond. The bond was in the penal sum of $10,000, signed by M. C. McLain and the other defendants, dated Nov. 17, 1871. The additional breaches were filed by appellants Apr. 26, 1878, averring that the beneficial plaintiffs were the heirs of Philander Jones, who died seized of certain real estate described, etc. That at the Hay term of said Coles county Circuit Court, the said court decreed partition ©f the land in the suit of Fred W. Jones et al. v. W. W. Shaw. That partition of the land was decreed, and the master in chancery ordered to make the sale. That on the 3d day of July, 1871, the master did make the sale, the master being Michael 0. McLain, and who received on said sale the sum of $3,215.00. That it was received during his term of office, and that he failed to pay it over. Among other pleas, defendants pleaded, it not being necessary to notice the other pleas: “ That there was no record of the supposed recovery. That the proceeding mentioned in such breach was not a proceeding on the chancery side of the court, but a proceeding at law,” etc. On the 24th day of the May term of the court the cause was heard by the court, and on the 33d day the court found the issues for defendant, and gave judgment against plaintiffs for costs. To reverse the judgment the cause is brought here. The plaintiffs read in evidence to sustain the issues the decree of partition and sale, and the order that the master in chancery make the sale. Also report of defendant McLain, the master in chancery, made at the Oct. term, 1873, showing a balance in his hands as master of over $1,000. There was introduced the decree of court approving sale and ordering the master to pay over the money. The objection urged by appellees in bar of recovery is that the appellants did not prove the averments of their assignments of breaches. That they failed to show decree of partition, and that they also failed to show that the partition suit was in equity. That the original bill in the partition suit was not read in evidence.

The only denial in defendant’s plea that there was a suit of partition in chancery as set out in the breach, was that it was not a proceeding on the chancery side of the court, but a proceeding in law, not raising the question of fact, whether there was such a proceeding in fact, but whether it was in chancery or at law. It was tendering an issue of law rather than a fact, hence the existence of the papers and record was not denied. By an examination of the bill for partition, decree and master’s report, there can be no doubt that the partition suit was on the chancerv side of the court. The case even, without the bill, sufficiently appears it is so treated by the court and by the master in his report of sale. If it be admitted, a point which we do not decide, that if the proceeding had been a purely statutory one,, that the securities of the master would not be liable, yet the distinction is so nice between the chancery proceeding of partition, that the court, in order to uphold the jurisdiction of the court in a collateral proceeding, will refer the case to the law or chancery side of the court, as may be necessary. Nichols v. Mitchell, 70 Ill. 258. But taking the proceedings in this case, the decree of confirmation and of partition, and sale by the court and the report of master, it will be seen that the case was treated as one in chancery all the way through. The plaintiffs should not be defeated of their right to recover by such objections as these. The court erred in not rendering judgment on the assignment of breaches by plaintiffs for the amount shown to be due, by the evidence, the amount not paid over by defendant McLain, after allowing him his payments and all just charges. The judgment of the court below is therefore reversed and the cause remanded.

Reversed and remanded.